In Case They Don’t Live Happily Ever After…

If you have family wealth that you wish to protect, the joy at the prospect of one of your children getting married may be tempered somewhat by a touch of trepidation in case the marriage doesn’t last, particularly if a large settlement of assets is to be made on the happy couple.

In such circumstances, the use of a pre-nuptial agreement (‘pre-nup’) is likely to make a great deal of sense. Legally speaking, such agreements are still rather a grey area. However, the judge in a leading case on the subject has most helpfully suggested a number of criteria which would assist the courts in deciding whether or not a pre-nup should be regarded as enforceable.

The most important of these from the perspective of the parties to a pre-nup are:

• does the spouse being asked to sign the pre-nup understand it?
• has he or she been properly advised as to its terms?
• was pressure exerted by one spouse to make the other sign?
• was there full disclosure of the relevant assets?
• was pressure exerted by anyone else to make them sign?
• was the agreement signed willingly?
• did one spouse exploit a dominant position?
• was the agreement entered into in the knowledge that there would be a child?
• has any unforeseen circumstance arisen which would make enforcing the pre-nup unjust?
• does the order preclude the payment of any periodical payment for maintenance of a spouse and if so, would it be unjust to hold the parties to that agreement?
• are there grounds for believing that upholding the agreement would be unjust?

For a pre-nup to achieve the desired object, it must be properly drafted and put into place in the correct circumstances. In particular, both parties to it should have the benefit of independent legal advice.

If you are concerned that a relationship might not have a happy ending, we can assist you to help protect your family’s assets from the depredations of an ex-spouse. Contact Rupinder Bains.

Partner Note

K v K (Ancillary relief: Prenuptial Agreement) [2003] 1 FLR 120.
See also the recent Crossley v Crossley [2007] EWCA Civ 1491.

This publication contains information which is intended for general guidance only. The information is provided in a concise form and is not substitute for obtaining legal advice. If you would like advice specific to your circumstances, please contact us.